Contract analysis

I. EXECUTIVE SUMMARY The purpose of this memorandum is to analyze whether Fairwater Real Estate Investment Trust ("Fairwater" or "FREIT"), a Maryland real estate investment trust listed on the New York Stock Exchange (ticker: FRWT), qualifies as a well-known seasoned issuer ("WKSI") under Rule 405 of the Securities Act of 1933, as amended (the "Securities Act"), and to summarize the mechanics, benefits, and procedura

II. BACKGROUND A. Fairwater REIT — Overview Fairwater Real Estate Investment Trust is a Maryland real estate investment trust organized in 2003 under Title 8 of the Maryland REIT Law. Fairwater's common shares of beneficial interest are listed on the New York Stock Exchange under the ticker symbol "FRWT." The SEC Commission File Number (CIK) for Fairwater is 0001387204, and its Standard Industrial Classification (SIC

1. ATM Common Share Sales (Ongoing, 2022–2025): Fairwater sold approximately $200,000,000 in common shares through its ATM program under the Equity Distribution Agreement described in Section II.D below. These sales consisted of approximately 7,520,000 common shares sold at a weighted average price of approximately $26.60 per share, reflecting a range of market prices over the program period. The ATM program served a

2. Underwritten Follow-On Common Share Offering (October 2023): In October 2023, Fairwater completed an underwritten public offering of 6,481,481 common shares of beneficial interest at an offering price of $27.00 per share (before underwriting discount), generating aggregate gross offering proceeds of approximately $175,000,000. The offering was conducted on a fully marketed basis pursuant to a prospectus supplement

3. Series A Preferred Share Offering (June 2024): In June 2024, Fairwater completed a public offering of 4,000,000 shares of its 6.50% Series A Cumulative Redeemable Preferred Shares of Beneficial Interest at an offering price of $25.00 per share (equal to the liquidation preference), generating aggregate gross offering proceeds of $100,000,000. Because Fairwater held WKSI status at the time of the prior shelf filing

III. WKSI ELIGIBILITY ANALYSIS A. Rule 405 Definition — Elements of WKSI Status Rule 405 under the Securities Act defines a "well-known seasoned issuer" as an issuer that, as of the most recent determination date, satisfies the following conditions: (1) Size Test (Alternative): The issuer meets one of the following two alternative size criteria: (a) Public Float Test: The issuer has a worldwide market value of outsta

1. Organization and Domicile: The registrant must be organized under the laws of the United States, any State thereof, or the District of Columbia, and must have its principal business operations in the United States or its territories. Fairwater is organized and existing as a real estate investment trust under the laws of the State of Maryland and has its principal executive offices in Annapolis, Maryland. All of it

2. Twelve Calendar Months of Exchange Act Reporting: The registrant must have been subject to the requirements of Section 12 or Section 15(d) of the Exchange Act and have filed all required reports for a period of at least twelve calendar months immediately preceding the filing of the registration statement. Fairwater has been an SEC reporting company since its initial public offering, which was completed well over t

3. Timely Filing of Exchange Act Reports: The registrant must have timely filed all reports required to be filed under Sections 13, 14, or 15(d) of the Exchange Act during the twelve calendar months (and any portion of a month) immediately preceding the filing date. We have reviewed Fairwater's filing history on the SEC's EDGAR system and confirmed that Fairwater has timely filed all required reports — including its

4. No Default on Indebtedness: The registrant must not have failed to pay any dividend or sinking fund installment on preferred stock, or defaulted on any installment of indebtedness for borrowed money or on any rental on a long-term lease, since the end of the last fiscal year. Based on information provided by Fairwater's management and publicly available disclosures, Fairwater has not failed to pay any dividend on

5. General Instruction I.A — Primary Offering Eligibility: For primary offerings, Form S-3 General Instruction I.B.1 requires that the aggregate market value of voting and non-voting common equity held by non-affiliates be at least $75 million, or, alternatively under General Instruction I.B.2, that the registrant has issued at least $1 billion in non-convertible securities in the preceding three years. As establishe

1. Public Float Test: Fairwater's public float of approximately $3.63–$3.82 billion exceeds the $700 million threshold by more than five times.

2. Form S-3 Registrant Requirements: Fairwater satisfies all registrant eligibility requirements under the General Instructions to Form S-3, including the twelve-month reporting requirement, timely filing requirement, and no-default requirement.

3. Not an Ineligible Issuer: Fairwater has no disqualifying events or conditions under any of the categories enumerated in the "ineligible issuer" definition of Rule 405. Fairwater qualifies as a well-known seasoned issuer (WKSI) under Rule 405 of the Securities Act as of the anticipated filing date of July 18, 2025. We note that WKSI eligibility is assessed as of the filing date of the automatic shelf registration s

IV. AUTOMATIC SHELF REGISTRATION UNDER RULE 462(e) A. Overview of Automatic Shelf Registration Rule 462(e) under the Securities Act provides that a registration statement filed by a WKSI on Form S-3 (or Form F-3 for a foreign private issuer) that is designated by the registrant as an "automatic shelf registration statement" will become effective immediately upon filing with the SEC. This is a departure from the stand

V. PAY-AS-YOU-GO FILING FEE MECHANICS — RULES 456(b) AND 457(r) A. Rule 456(b) — Deferred Payment of Filing Fees One of the most significant practical advantages of WKSI status is the ability to defer payment of SEC registration fees. Under Rule 456(b) of the Securities Act, a WKSI that files an automatic shelf registration statement is permitted to defer payment of the registration fee that would otherwise be requir

VI. THREE-YEAR SHELF LIFE UNDER RULE 415(a)(5) A. Rule 415(a)(5) — Expiration of Shelf Registration Rule 415(a)(5) of the Securities Act provides that a registration statement filed on Form S-3 (or Form F-3), including an automatic shelf registration statement filed by a WKSI, will expire three years after its initial effective date. Upon expiration, the registration statement may no longer be used for new offerings,

VII. PROCEDURAL STEPS FOR SHELF FILING AND ATM PROGRAM TRANSITION A. Pre-Filing Deliverables and Workstreams The following deliverables and workstreams must be completed in advance of the July 18, 2025 filing date:

1. Board Resolutions: Fairwater's Board of Trustees must adopt resolutions authorizing the following actions: (a) The filing of a new shelf registration statement on Form S-3 for the registration of up to $2,000,000,000 in aggregate offering amount of common shares of beneficial interest, preferred shares of beneficial interest, senior and subordinated debt securities, depositary shares, warrants, and units; (b) The

2. Draft Registration Statement and Base Prospectus: Calderwood & Harkness will prepare the Form S-3 registration statement and the base prospectus covering all of the contemplated security types. The base prospectus will incorporate by reference Fairwater's Exchange Act filings, including the most recent Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, current reports on Form 8-K, and the proxy statement.

3. Draft ATM Prospectus Supplement: Calderwood & Harkness will prepare a prospectus supplement for the $500,000,000 ATM program, to be filed under Rule 424(b)(5) concurrently with or promptly after the shelf registration statement. The prospectus supplement will include: • Updated disclosure regarding the terms of the ATM program, including the identity of the agents, commission structure, forward sale provisions, an

4. Draft Amended and Restated Equity Distribution Agreement: Calderwood & Harkness will prepare the Amended and Restated Equity Distribution Agreement, which will be negotiated with the three agents (Pemberton Zanthor & Co., Clarendon Securities LLC, and Veltrano Capital Partners LLC) and their counsel, Dunmore Caldwell LLP. The Amended and Restated Agreement will: • Supersede in its entirety the original Equity Dist

5. Legal Opinion (Exhibit 5.1): Calderwood & Harkness will prepare and deliver the legal opinion required by Item 601(b)(5) of Regulation S-K, to be filed as Exhibit 5.1 to the registration statement. The opinion will address the valid issuance, fully paid, and non-assessable nature of the common shares and preferred shares of beneficial interest under Maryland law, the due authorization and valid issuance of the deb

6. Tax Opinion (Exhibit 8.1): Calderwood & Harkness will prepare and deliver a tax opinion, to be filed as Exhibit 8.1 to the registration statement, regarding Fairwater's qualification as a real estate investment trust for federal income tax purposes under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended. The opinion will cover all taxable years of Fairwater beginning with the taxable year e

7. Comfort Letter: Calderwood & Harkness will coordinate with Fairwater's independent registered public accounting firm, Hargrove & Tillman LLP (audit engagement partner: Brian Ogilvie), for the issuance of a comfort letter in accordance with Statement on Auditing Standards No. 72, as amended, and the accountants' consent to the incorporation by reference of their audit reports in the registration statement. The comf

8. Transfer Agent Coordination: Calderwood & Harkness and Sandra Ellerby will confirm with Meridian Trust Company (contact: Paula Jennings) that the transfer agent is prepared to facilitate share issuance mechanics under the new shelf registration statement, including the issuance of shares sold through the ATM program. Meridian Trust Company should be provided with a copy of the new registration statement and prospe

9. EDGAR Preparation: Calderwood & Harkness's EDGAR filing team will prepare the registration statement for filing on the SEC's EDGAR system, including all required XBRL tagging, cover page interactive data, and exhibit formatting. The EDGAR filing will be prepared and reviewed in advance of the July 18, 2025 filing date to ensure accuracy and a smooth filing process. A test filing (if appropriate) may be considered.